Tuesday: Individual Mandate on the Hot Seat

It’s Day Two for the Affordable Care Act at the Supreme Court, and the individual mandate takes the stage. Arguably the most controversial provision of the health reform law, the minimum coverage requirement boils down to the Commerce Clause and the degree to which the federal government can regulate decisions on an individual basis: The 26 states challenging the provision claim that Congress exceeds its power in requiring most Americans to purchase health insurance or pay a penalty.

While the challengers may acknowledge that the Commerce Clause allows Congress to regulate interstate commerce for those who wish to voluntarily participate in the market, they argue that compelling people to purchase a specific good goes beyond the authority allowed by the Commerce Clause and usurps individual liberty. They further argue that if the individual mandate is upheld, a slippery slope would ensue in which the government could force individuals to purchase anything it deems “good” for society, whether it be gym memberships or asparagus.

The federal government, however, responds by claiming that it does indeed have the constitutional power to require individuals to purchase health insurance, since everyone consumes health care and participates in the market at some point. Because of the nature of health care, inactivity in the market (refusing to purchase health insurance) inevitably entangles one in interstate commerce as much as activity (purchasing it) does.

Even Justice Scalia, known for his stark conservatism and witty banter, sided with the government in the 2005 case Gonzales v. Raich, in which the federal government was found to be allowed to prevent Californians from growing medicinal marijuana for personal use. In a concurring opinion, Scalia noted that although Raich’s marijuana was for her personal use, “marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market.” In fact, Solicitor General Donald B. Verrilli, Jr. uses Scalia’s very language in his brief supporting the health care law: “Because of human susceptibility to disease and accident, we are all potentially never more than an instant” from needing health care, and the individual mandate is a way to pay for the care that most Americans will inevitably use.

The battle’s not over yet! Wednesday will be devoted to the constitutionality of the Medicaid expansion and the issue of severability. Visit the RAC’s resource page for more information on health care reform, programming ideas, and analyses of the Supreme Court case.